Setting the scene

As indigenous peoples, the protection (legal or otherwise, such as through voluntary instruments and professional bodies’ declarations) of ‘community rights’1 at the national level in countries rich in biological and cultural diversity, needs to follow the path of a human-rights approach.2 This suggestion is based on the recognition that community rights are crafted in many human rights instruments, international and regional, legally and non-legally binding (such as declarations), which should be taken into account in national policy-making. Unfortunately, in respect of national policy-making processes aimed at protecting community rights and addressing their concerns about access to and use of biological and genetic resources, and traditional knowledge (TK) in scientific and commercially motivated activities, there is often a lack of integration of human-rights considerations in the process. Furthermore, law and policy-making aimed at addressing the concerns of local communities are usually pursued in a very fragmented and piecemeal fashion at the national level, with no practical cooperation among the various actors and government institutions involved in the various aspects of management and regulation of community assets. As a consequence of this unpractical approach, there is no comprehensive and workable regulatory framework in force anywhere in the countries endowed with significant richness in bio-cultural diversity which can be viewed as providing protection to community rights from a human-rights perspective and addressing the various concerns of traditional and local communities – one of which being the issue of bio-piracy – over access to and use of their assets3 by technologically advanced and capacitated users. Ironically, to address their interests, technologically capacitated users of the

assets of traditional communities use other weapons in their possession, such as the application of modern intellectual property rights (IPRs) such as patents or PBR systems over the outputs of their research endeavours based on the raw assets taken from local communities or their traditional lands. Analyses contained in the following sections and chapters are based on the realization and acknowledgement that IPRs and community rights are, in a way, all linked to each other within the framework of existing human-rights instruments. Indeed, even though human rights and IPRs are fundamentally dissimilar regimes because they pursue different

aims, it is nevertheless the case that IPRs and community rights are all encapsulated in a number of international and regional human-rights treaties and recognized by international bodies such as the UN (more on this in Chapter 4). Despite this obvious linkage between human rights and IPRs, current regulatory avenues such as the ABS legislations (or biodiversity regulations) being established at the international and national levels and the voluntary mechanisms in the form of, for example, some declarations of professional bodies aiming to address the concerns and expectations of rural communities, fail to incorporate human-rights considerations from their development through to their implementation. Perhaps this situation is due to the lack of involvement of human-rights experts in these lawand policy-making processes. One of the consequences of this failure is that the weight and consideration given to IPRs in the end products from these law-making processes generally outweigh community rights and interests, perhaps due to the significant influence of corporate actors in these processes, who after all are not ready to lose, see themselves weakened, or have undermined all the benefits that they currently enjoy from strong consideration of IPRs. There seems to be profound and arguably obvious resentment on the part of traditional communities and actors sympathetic to their concerns that, indeed, in respect of policy development targeting issues of access to community assets and use of them in scientific and technology-intensive processes, IPRs of corporate and technologically capacitated actors have more influence than the community rights of local and indigenous peoples who are also traditional holders and custodians of biological resources and associated TK. For example, while corporate and research operators enjoy all the benefits arising from protecting their plants and TK-based research and development outputs by patents or PBRs including the associated financial benefits and the bargaining leverage, indigenous and local communities are being prevented from enjoying their own social and cultural benefits arising from their traditional rights over the very assets that formed the bedrock of technologically based research and development endeavours. Some of these rights that communities are arguably prevented from enjoying by PBRs are the rights to save and reuse planting materials for the next farming season and the rights to participate in decision-making processes pertaining to access to and the use of their assets at all stages of modern research and development processes. How then should human rights come into play in an attempt to balance the

interests of technology holders and modern users of the assets of traditional communities, the concerns of local and traditional communities over access and use of their assets, modern intellectual property (IP) over the application of the relevant outputs? This question is at the centre of the discussions and arguments running through the following sections and chapters of this book. Our point of departure is that in every instance involving access to community assets and use of them in profit-making technology-intensive processes with the application of patents and PBRs, we argue that stakeholders need to address the expectations of local communities from a human-rights perspective. This approach does not necessarily mean that the financial and other beneficial expectations of technology-holders would be affected negatively if they adopted a human perspective in

the course of their actions. Rather, such an approach will more likely have no effect on such beneficial expectations of technology holders, but will instil and strengthen communities’ trusts in the activities of technology holders, setting the stage for sustainable and more mutually beneficial relationships between local communities and the users of their assets. The human-rights considerations will be crafted in workable policy measures that will comprehensively integrate community rights and interests as well as the goals and objectives of the IPRs. Using four carefully selected jurisdictions, namely Brazil, India, Peru and South

Africa, this book focuses on suggesting some workable, comprehensive and enforceable policy measures embedded in regulations aimed at protecting the rights and addressing the concerns and expectations of traditional communities without undermining the goals and objectives of IPRs (patents and PBRs) in the context of access to community assets, use of them in scientific and commercially oriented activities. The book does so by decrypting how modern exploitation of community assets in research and development processes and the application of patents and PBRs, in line with the concept of bio-piracy, typically bring disrespect to community rights, which are recognized in regional and international human-rights law and processes. There is no intention here to blindly blame corporate and research institutions practices for bio-piracy. The subsequent bio-piracy-related accounts are objectively analytical in nature. They refute the bio-piracy concept when a specific case is not grounded on convincing evidence and, therefore, aim to oppose any nonevidenced or blatantly anecdotal negative impact of patents and PBRs on the rights, interests and expectations of indigenous and local communities. It must however be stressed that analyses carried out in this book are not strictly limited to the four selected countries. Where deemed necessary, the book will refer to cases and examples from other countries and areas rich in bio-cultural diversity, to the extent that such examples are relevant to the main themes discussed herein. As it transpires from the above, the main themes discussed in the book are:

Community rights. The rights of local and indigenous communities will be defined and discussed within the frames of the various laws and policies covered in this book.